Citation Nr: 0800051
Decision Date: 01/02/08 Archive Date: 01/09/08
DOCKET NO. 05-40 585 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran served on active duty in the U.S. Army from
February 1943 to March 1944, and with the Merchant Marine
under the jurisdiction of the United States Coast Guard from
April 1944 to November 1944. To the extent that the veteran
has asserted that he served with the Merchant Marine until
August 1945, even assuming such service was shown, given the
state of the evidence, it would not affect the outcomes of
the claims, and further development is therefore not
warranted. See 38 C.F.R. § 3.159(d) (2007).
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Oakland,
California.
In May 2006, the veteran filed a motion for advancement on
the docket. Under the provisions of 38 U.S.C.A § 7107 (West
2002) and 38 C.F.R. § 20.900(c) (2007), appeals must be
considered in docket number order, but may be advanced if
good or sufficient cause is shown. In this case, in light of
the Board's present adjudication of the claims, a formal
approval of the request is not required.
FINDINGS OF FACT
1. The veteran does not have bilateral hearing loss as a
result of his service.
2. The veteran does not have tinnitus as a result of his
service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by the veteran's active military service, nor may
sensorineural hearing loss be presumed to have been so
incurred. 38 U.S.C.A. §§ 1110, 1112, 1137, 1154(b), 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309
(2007).
2. Tinnitus was not incurred in or aggravated by the
veteran's active military service. 38 U.S.C.A. §§ 1110,
1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
The appellant asserts that service connection is warranted
for bilateral hearing loss, and tinnitus. He asserts that he
was exposed to small arms fire, noise related to duties as a
fireman and water tender, bombing, and that his Merchant
Marine ship was sunk in August 1944.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also
provide that service connection may be granted for a
disability diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disability is due to disease or injury which was incurred in
or aggravated by service. 38 C.F.R. § 3.303(d). Service
connection may also be granted for an organic disease of the
nervous system, such as a sensorineural hearing loss, when it
is manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 2002); 38 C.F.R. §§ 3.307, 3.309. It is appropriate to
consider high frequency sensorineural hearing loss an organic
disease of the nervous system and, therefore, a presumptive
disability. See Memorandum, Characterization of High
Frequency Sensorineural Hearing Loss, Under Secretary for
Health, October 4, 1995.
Applicable regulations provide that impaired hearing shall be
considered a disability when the auditory thresholds in any
of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz
are 40 decibels or greater; the thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores are 94 percent or less. 38 C.F.R.
§ 3.385 (2007).
The veteran's service medical records are not available and
may have been destroyed in the 1973 fire at the National
Personnel Records Center (discussed infra). With regard to
the veteran's Merchant Marine/Coast Guard service, a May 2007
deferred rating decision states that it is not possible to
request service medical records for merchant seamen, although
where treatment was provided at PHS (U. S. Public Health
Service) hospitals, these records may be available. In this
case, the veteran has stated that he never received treatment
for either hearing loss or tinnitus during his service. See
veteran's letter, received in July 2007.
As for the post-service medical evidence, it consists of a VA
and a non-VA medical report, each dated in 2005.
Specifically, and audio examination report from W.A., Au.D.,
dated in March 2005, shows that the veteran reported a
history of exposure to loud noise during World War II, and
that he had had his current hearing aids for the last ten
years. He further reported a history of tinnitus "as long
as he could remember which may or may not have begun during
his military experience." He stated that he had worked at
"Masonite" for approximately 25 years, where use of hearing
protection was both encouraged and worn. The report contains
charted audiometric results which appear to show that the
veteran has bilateral hearing loss as defined at 38 C.F.R. §
3.385. The examiner stated, "Due to his complaint of
chronic tinnitus in both ears, it is more likely than not
that it began during his military service."
A VA audio examination report, dated in July 2005, shows that
the veteran reported being exposed to bombing during service
aboard a ship during the Normandy invasion, with post-service
employment of 25 years working in a factory during which time
he was exposed to excessive noise from heavy equipment and
machinery. He further reported a 30 to 35-year history of
tinnitus in the right ear, with a frequency of about once per
month. This report shows that the veteran has bilateral
hearing loss as defined at 38 C.F.R. § 3.385. The examiner
concluded, "Although he has a severe hearing loss in both of
his ears, it is this examiner's opinion that his hearing loss
and tinnitus are not as likely as not the result of military
noise exposure. It has been over 60 years since his military
service and he started noticing tinnitus approximately 30-35
years ago. His report of occupational noise exposure for 25
years is more likely the cause of his hearing loss and
tinnitus."
The Board has determined that the claims must be denied. In
this case, earliest evidence of hearing loss, or tinnitus, is
dated in 2005. This is approximately 60 years after
separation from service. This lengthy period without
treatment is evidence that there has not been a continuity of
symptomatology, and it weighs heavily against the claims.
See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). With
regard to the claim for bilateral hearing loss, there is no
competent evidence to show that the veteran has hearing loss
that is related to his service. With regard to the claim for
tinnitus, the July 2005 VA examiner's opinion weighs against
the claim. The examiner noted that the veteran had reported
that his tinnitus began 30 to 35 years before. This would
place the onset of tinnitus to about 1970, which was about 25
years after separation from service. Furthermore, the VA
examination report shows that the veteran reported that after
service, he had been employed in a factory for 25 years,
during which time he was "exposed to excessive noise from
heavy equipment and machinery." Although the Board has
considered the opinion of the March 2005 audiologist, there
is an inherent contradiction between the veteran's stated
history of tinnitus in this report ("as long as he could
remember which may or may not have begun during his military
experience") (emphasis added) and the examiner's conclusion,
which asserts that "it is more likely than not that it began
during his military service." Any inference of an assertion
of an onset of tinnitus during service by the audiologist
would also be contrary to the veteran's reported history as
noted in the VA examination report. See Lee v. Brown, 10
Vet. App. 336 (1997) (an etiological opinion should be viewed
in its full context, and not characterized solely by the
medical professional's choice of words); Obert v. Brown, 5
Vet. App. at 30, 33 (1993) (a medical opinion expressed in
terms of "may," also implies "may or may not" and is too
speculative to establish a plausible claim). Furthermore,
the March 2005 audiologist did not discuss the veteran's 25
year post-service history of noise exposure in a factory,
during which time he reported that he was exposed to
excessive noise from heavy equipment and machinery. See
Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for
assessing the probative value of a medical opinion include
the thoroughness and detail of the opinion.); Elkins v.
Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a
nexus may decline in probative value where the physician
fails to discuss relevant medical history). Finally, there
is no competent evidence to show that sensorineural hearing
loss was manifested to a compensable degree within one year
of separation from service. See 38 C.F.R. §§ 3.307, 3.309.
Accordingly, the Board finds that the preponderance of the
evidence is against the claims, and that the claims must be
denied.
With respect to the veteran's own contentions, a layperson is
generally not capable of opining on matters requiring medical
knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998)
citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a
layperson without the appropriate medical training and
expertise is not competent to provide a probative opinion on
a medical matter, to include a diagnosis of a specific
disability and a determination of the origins of a specific
disorder). Lay testimony is competent, however, to establish
the presence of observable symptomatology and "may provide
sufficient support for a claim of service connection."
Layno v. Brown, 6 Vet. App. 465, 469 (1994).
When a condition may be diagnosed by its unique and readily
identifiable features, the presence of the disorder is not a
determination "medical in nature" and is capable of lay
observation. In such cases, the Board is within its province
to weigh that testimony and to make a credibility
determination as to whether that evidence supports a finding
of service incurrence and continuity of symptomatology
sufficient to establish service connection. See Barr v.
Nicholson, 21 Vet. App. 303 (2007).
Lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional. Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007).
The issues on appeal are based on the contention that
bilateral hearing loss, and tinnitus, were caused by service
many years ago. In this case, when the veteran's post-
service medical records are considered (which indicate that
the claimed conditions began years after service, and which
do not contain competent evidence of a nexus between hearing
loss and the veteran's service), the Board finds that the
medical evidence outweighs the veteran's contentions that he
has bilateral hearing loss, and tinnitus, that are related to
his service. In this regard, to the extent that the veteran
may have intended to assert that he has the claimed
conditions due to participation in combat, the Court has held
that 38 U.S.C.A. § 1154 does not alter the fundamental
requirements of a diagnosis, and a medical nexus to service.
See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine
v. Brown, 9 Vet. App. 521 (1996).
II. Duties to Notify and Assist
The Board finds that VA has satisfied its duties to the
veteran under the Veterans Claims Assistance Act of 2000
(VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." This "fourth element" of
the notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet.
App. 112 (2004).
VA has made all reasonable efforts to assist the veteran in
the development of his claims, has notified him of the
information and evidence necessary to substantiate the
claims, and has fully disclosed the government's duties to
assist him. In a letter, dated in June 2005, the veteran was
notified of the information and evidence needed to
substantiate and complete the claims. The June 2005 VCAA
notice complied with the requirement that the notice must
precede the adjudication. Mayfield v. Nicholson (Mayfield
II), 444 F.3d 1328 (Fed. Cir. 2006); aff'd Mayfield v.
Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006).
During the pendency of this appeal, the Court further
redefined the requirements of the VCAA to include notice that
a disability rating and an effective date for award of
benefits would be assigned if service connection is awarded.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
No further notice is needed as to any disability rating or
effective date matters. As the claims have been denied, any
questions as to the disability rating or the appropriate
effective date to be assigned are moot. Therefore, VA's duty
to notify the appellant has been satisfied, and no prejudice
to the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby).
The Board further finds that VA has complied with the VCAA's
duty to assist by aiding the veteran in obtaining evidence.
In this case, as previously noted, a July 2005 response from
the National Personnel Records Center (NPRC) states that the
veteran's service medical records are not available and may
have been destroyed in a 1973 fire. Under such
circumstances, there is a heightened duty to search for
medical information from alternative sources in order to
reconstruct the SMRs. Jolley v. Derwinski, 1 Vet. App. 37,
39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548
(1992). The Board is also under a duty to advise the
claimant to obtain other forms of evidence, such as lay
testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992);
Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992).
The Board is satisfied that its duty has been met and that
all reasonable efforts to develop the record have been made.
Prior to issuing its decision, the RO requested the NPRC to
obtain the veteran's service and service medical records. In
July 2005, the NPRC reported that the veteran's records could
not be found. In December 2006, the RO contacted the veteran
and notified him that his service medical records were
unavailable. The RO requested that he provide any medical or
lay evidence in support of his claims. With regard to the
veteran's Merchant Marine service under the jurisdiction of
the Coast Guard, in May 2007 the RO determined that the
veteran's service medical records during this service not be
requested. See May 2007 deferred rating decision (citing
VBA's Adjudication Procedure Manual, M21-1MR, Part III.
[iii.2.F.40.b.]. In June 2007, the veteran was notified of
this fact. Finally, the Board notes that the veteran has
stated that he did not receive treatment for either hearing
loss symptoms, or tinnitus symptoms, during his service.
Therefore, the Board finds that the RO has satisfied its duty
to assist under Cuevas v. Principi, 3 Vet. App. 543, 548
(1992).
The veteran has been afforded an examination, and etiological
opinions have been obtained. The Board therefore concludes
that decisions on the merits at this time do not violate the
VCAA, nor prejudice the appellant under Bernard v. Brown, 4
Vet. App. 384 (1993).
Based on the foregoing, the Board finds that the veteran has
not been prejudiced by a failure of VA in its duty to assist,
and that any violation of the duty to assist could be no more
than harmless error. See Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs